16/2007 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court decided on 5 July 2004. October 2006 in plenary in the composition of Stanislav
Package, Francis Skinner, Turgut Güttler, Pavel Holländer, Ivana Janů,
Vladimir Crust, Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Pavel
Rychetský (Judge-Rapporteur), Miloslav Výborný, Elisabeth Wagner, and
Michael April about the design of a group of 42 members of the Chamber of Deputies
Parliament of the Czech Republic, which represents Member Prof. JUDr. Zdeněk
Jičínský, DrSc., on the repeal of the provisions of § 17 para. 1, part of a sentence that
added "if it agrees at least half the employees concerned has
This agreement concern. "§ 17 para. 2 part of the sentence which reads "If
It agrees at least half of the employees covered by the collective
agreement a greater degree of concern. "§ 17 para. 4 (b). (c)) and § 17 para. 5
Act No. 2/1991 Coll., on collective bargaining, as amended
regulations,
as follows:
The proposal is rejected.
Justification
(I).
Recap of the proposal
1. the examination of the Proposal pursuant to § 64 para. 1 (b). b) Act No. 182/1993 Coll.
on the Constitutional Court, a group of 42 members of the Chamber of deputies of the Parliament
The Czech Republic (hereinafter "the applicant") seeking the release of the award, which
should the Constitutional Court to annul the provisions of § 17 para. 1 part of the sentence which reads ",
If it agrees at least half of the employees covered by this
collective agreement to cover. " ("if it agrees at least
half of the employees covered by this agreement has a concern. "), § 17 para. 2
part of the sentence which reads "if it agrees at least half
employees covered by this collective agreement to cover. " (correctly ",
If it agrees at least half the employees concerned has
the collective agreement a greater degree of concern. "), § 17 para. 4 (b). (c)) and §
Article 17(1). 5 of the Act No. 2/1991 Coll., on collective bargaining, as amended by
amended.
2. the applicant stated that under the contested provisions of the law on
collective bargaining is the announcement of a strike in a dispute concerning the conclusion of
collective agreements can only be made in this case, if you agree with it
at least half of the employees covered by the collective agreement apply to you.
The trade authority is obliged to notify in writing the
employers at least three working days in advance of the names of a list of shortcuts
the competent Trade Union body, who are authorized to represent
the participants of the strike, and at least one working day before the start of the strike
list of the names of employees who are participants in the strikes.
3. The contested provisions of the law on collective bargaining are
the applicant in breach of article 88(3). 1 of the Constitution of the Czech Republic (hereinafter referred to as
"The Constitution"), under which the Czech Republic is a sovereign, unified and
the democratic rule of law based on respect for the rights and freedoms of man,
article. 10 of the Constitution, under which ratified and proclaimed International
the Treaty on human rights and fundamental freedoms binding on the Czech
Republic immediately binding and take precedence over the law
(the appellant incorrectly quoted the wording of article 10 of the Constitution before the amendment
performed by Constitutional Act No. 395/2001 Coll.), art. 8 of the International Covenant
on economic, social and cultural rights (proclaimed under the No.
120/1976 Coll.), which guarantees the right to strike, the International Convention
Labour Organisation (ILO) No. 87 on freedom of Association and protection of the
the law of the right to organise (published under no. 489/1990 Coll.), Convention
ILO 98 on the implementation of the principles of the right to organise and collective
negotiate (published under no. 470/1990 Coll.), which are also part of the
the legal order of the Czech Republic. According to the appellant, although these conventions
explicitly mention the right to strike, but this right stems from the freedom of
pooling. The contested provisions of the law on collective bargaining are
appellant further in breach of article. 27 para. 4 of the Charter of fundamental
rights and freedoms ("the Charter") and article. 4 of the Charter.
4. The contradiction of the contested provisions of the law on collective bargaining with
the cited constitutional acts and international treaties of the sees
the appellant in that the conditions laid down for the announcement of the strike are in
its consequences serious limitations of the right to strike as a major
tools of the defence of economic and social interests of employees.
"The requirements of the affected provisions of the Act are important
obstacles preventing employees in their proper exercise of the right to
the strike. In practice, these conditions lead to intimidation, discrimination
and even the dismissal of workers. They therefore prefer their right to
the strike, fearing before giving up the possible consequences, and are thus deprived of their
their constitutional order of the Czech Republic guaranteed rights. "
5. The contested legislation is based on the applicant in breach of and is
the opinions of the International Labour Office ("MÚP"). According to the
decision-making practice of the institutions MÚP, the Committee on freedom of Association and the Committee of the
experts is a requirement of the decision of the "supermajority" (sic!) of all
workers, which is the announcement of the strike concerned, disproportionate and could
unreasonably impede the execution of the strike options, especially in large
enterprises. The requirement of an absolute majority of the workers to strike
can cause problems, especially in the case of trade unions, which bring together
a large number of members. The requirement to obtain an absolute majority may therefore
involve the risk of serious limitations on the right to strike [the applicant to refer to the
"Freedom of association-Digest of decisions and principles of the
Freedom of Association Committee of the Governing Body of the ILO, fourth
(revised) edition, 1996, articles 507 and 508].
6. the appellant pointed to the experience of the Slovak Republic, which had
similar legislation until the amendment made by Act No. 209/2001
Of the reason for this amendment has been a complaint made to the MÚP Trade
združením železničiarov against the Government of the Slovak Republic. The provisions of the
the law was changed so that the strike may be declared if it
agree to an absolute majority of all employees of the employer
participating in the vote on the strike, which has a collective agreement
cover, provided that the vote at least an absolute
most of the employees calculated from all the employees, and that the competent
trade authority shall notify the employer at least three working days before the
the start of the strike the appropriate trade union list of the names of the representatives of the authority,
who are authorized to represent the participants of the strike. This new legal
adjustment of the Committee on freedom of Association reportedly reacted in a way that the provisions
According to which the strike must be approved by an absolute majority
workers participating in the vote on the strike, is in conformity with the principles of
the freedom of Association. The Committee acknowledged that the new legislation forms
submitted name lists is an improvement compared to the previous
the wording, however, considers that its practical application could lead
discrimination and reprisals against workers ' representatives who are
included in the list. The Committee noted that the activities of the protection against
trade union discrimination, it is desirable, in particular, in the case of Trade Union
to them to carry out their trade union
duties in full independence.
7. For these reasons, therefore, the appellant sought the release of the findings, as
mentioned above.
II.
The progress of the proceedings and the expression of the parties ' recap
8. the Constitutional Court challenge filed pursuant to § 69 law on the Constitutional Court
by the mouth of his Chairman Lubomir Zaorálek, PhD. observations
The Chamber of deputies of the Parliament of the Czech Republic. She admitted that in our
the legal order is adjusted only strike in the area of collective
negotiations (collective bargaining Act) and not strike other
of the species. In the absence of the conclusion of a collective agreement, even after the procedure before the
by the provider and the Contracting Parties request an arbitrator to resolve the dispute,
as a last resource, may be in a dispute concerning the conclusion of a collective agreement
declared a strike. For the Elimination of the so-called. Wild strikes is the base
as a condition of publication of the relevant trade union authority strikes the fact that
It agrees at least half of the employees covered by the collective
the contract apply to you. By establishing this requirement, it is stressed that the strike is
considered to be an extreme remedy. It is not desirable for such a serious step
only trade authority, without consent of the majority had to it
membership of trade unions.
9. According to the Chamber of deputies would rest in the negotiations in a dispute about
the conclusion of a collective agreement and did not contribute to quickly end if
all employees of the employer and the striking acted together. Therefore,
It is provided that the competent authority shall submit to the employer a trade
list of the names of the representatives of the trade authority, who shall be entitled to
represent the participants of the strike. A smaller number of vyjednávajících more easily
will come to an agreement.
10. Every employee has the right to freely decide whether to strike
joins or not. Such a decision has its consequences in terms of its
labour law and social rights. The employer should know
that number of people, and what the structure will be obsazovány in the work shift
the time of the strike. Employees who are not involved in the strike, the employer
allow performance of the work, and if as a result of the strike of the employees
cannot do the work, or held another job, their wage claims
governed by the provisions on wages in the performance of other work, or for a refund
wages when the obstacle of work on the part of the employer. Name lists
the participants therefore strikes are used to distinguish who is and who is not
a participant in a strike. – Participation in a strike is considered as
omluvená absences from work, for which, however, it is not for payment nor
wage compensation and sick-leave benefits for the period of the strike does not belong and support
family member care benefit, if the conditions for granting these benefits
meet at the time of participation in the strike.
11. The Chamber of Deputies stated that the law on collective
the negotiation was received after the completion of the legislative process, properly was
signed by the respective constitutional officials, and declared in the collection of laws.
According to her, the legislature acted in the belief that the law is adopted in
accordance with the Constitution, the constitutional order and laws of the United States.
12. The Senate of the Parliament of the United Kingdom through the mouth of its President MUDr. Přemysl
Sobotka to point out in its observations that the provisions in question design
the law on collective bargaining was approved at a time when the Senate yet
has not been established.
13. In substance, the draft noted that the Charter and the relevant international
the Treaty, which is expressly regulated the right to strike, are calculated with
more by editing this right by means of the law, with any restrictive
legislation must conform to defined criteria. From this point of view,
as regards the number of employees required quorum to decide on strike,
It may be a matter of assessment of the number of employees should be considered
appropriate to make decisions about it. It is quite obvious that the strike
can have serious economic consequences not only for the employer, but in
their implications for employees, including those who do not want to strike,
and depending on the nature of the employer's activities may have, directly or
vicariously also consequences for other employers or for other
citizens. The Senate pointed out the progress of the discussions on collective
bargaining in the Federal Assembly, which implies that the
the quorum have agreed on tripartite negotiations, representatives of the
employers and trade unions, and the Government party to this agreement
they did not interfere.
14. with regard to the obligation to notify the authority of the Trade Union
employers at least three working days in advance of the names of a list of shortcuts
the competent Trade Union body, who are authorized to represent
the participants of the strike, said the Senate, that the protection against any discriminatory
the conduct of the employer, on the risk of the applicant points out, the
hardly was in some kind of "concealment" of the Trade Union officials, but in the
the positive legislation, which would protect them against a possible
discrimination or criminal penalties. Such a rule is laid down in
the labour code, in particular in section 1 (1). 4 to 8 and § 7 (2). 2 to 6, and in
this sense also the activities of the Trade Union officials is subject to judicial
the protection.
15. Similarly, the parties to the obligation to submit a list of strikers,
You can point out to the labour code, from which it is clear that any
intimidation, discrimination and even the dismissal of the staff would be in the
violation of the law and the employee exercised the right to strike should
subject to judicial protection. It is quite obvious that, if the employer
list of participants of the strike in this way has not received, he would have to get it myself
ensure for example. for the purposes of assessing the wage claims of employees
participating in the strike or for the assessment of claims of such staff from the
health and social security (articles 22 to 24 of the Act on collective
negotiation).
16. The Chamber concluded that the contested provisions do not restrict the right to
to strike in a dispute concerning the conclusion of a collective agreement beyond the principles
laid down in article 4(1). 4 of the Charter and in the relevant provisions of international
of the treaties. The conditions laid down above reasons can be regarded as a
reasonable.
III.
Recap of the observations of other bodies according to section 49 of the Act on the constitutional
Court
17. According to § 49 paragraph 1. 1 of the law on the Constitutional Court addressed the Constitutional Court and the
participants in the so-called. the tripartite, i.e.. institutionalized social
dialogue between the Government, trade unions and employers, and provided them the opportunity,
to make a proposal for a comment.
18. The Czech-Moravian Confederation of trade unions in its observations dated
January 20, 2005 through the mouth of its President Milan Štěcha design group of MPs
welcomed and expressed its full support for him. According to her, the legislation
contained in the Act on collective bargaining a mere formal guarantee
the right to strike. Legal duty to present to the employer list
employees who are participating in the strike, leading in practice to the fact that
employees for any participation in a strike threatened penalty of
by an employer, in particular, followed by release, or are
various forms of harassed. Leads to situations in which
Although the employees intention to strike, but at the moment, when it finds that the
will be included in a list that will be submitted to the employer,
give up this right of reasonable fear for a possible penalty. Trade Union
the Organization will not get to support the strike by an absolute
a majority of employees to lose their ability to effectively defend the interests of the
employees against the employer. Further identification of the striking
the staff and the determination of the quorum for the publication of too-high strike leads
to restrict freedom of trade unions to organize and the right to strike. According to the
The Czech-Moravian trade union organisations are the contested provisions
the law on collective bargaining in violation of ratified and
promulgated international treaties, with art. 27 of the Charter and with the established
the decision-making practice of the International Labour Organisation.
19. The Union of industry and transport of the Czech Republic to respond to the options
the proposal did not use or shipment with a challenge to the Constitutional Court would not assume.
20. The Confederation of employers and business associations United
States in its statement of 31 January. January 2005 stated that with the proposal
a group of MPs do not agree. It is unthinkable to strike
as a last resource in a dispute concerning the conclusion of a collective agreement
took place, if its holding will not agree to at least half
employees. There is no denying the right of the majority, which is the basic principle of
democracy. The submission of the list of employees, it is also necessary
resource, since otherwise there is no other evidence of the fact who is
a participant in the strike and who just interrupt work exploits. The employer
must know who and who not to strike, even in relation to other
obligations incumbent on it under the labour law and other
Regulations (e.g. determining breaks in work, health and safety
at work, absence for other obstacles in the work of the
employees, etc.). The presumption of the plaintiff, that employers
abuse their position in relation to the participants of the strike, according to the Confederation of
employers and business associations of the Czech Republic
unfounded. Cancellation of the contested provisions would be fundamentally
balance in the relationship of employer and employee in these, for
both sides of the complex situations.
21. the Government of the United States under the chairmanship of JUDr. Stanislav Gross
by its resolution No. 140 on 2 December. February 2005, adopted a statement to the proposal
a group of MPs. At the outset, the Government stated that the law on collective
He was admitted at the time of negotiation before the adoption of the Charter.
22. On the question of the quorum for the announcement of the strike, the Government stated that the strike is
a serious enough offence, it is necessary to avoid that it could declare
only a relatively small number of radical workers, and most of that would have
for example, the preferred further negotiations would have to
subject to the minority. The strike is the last possible means of promoting the
the requirements of employees, may have economic effects and adverse effects
(I) for employees, so the condition of the consent of at least half
employees covered by the collective agreement, has been in formulating
the contested provisions considered reasonable. For completeness, the Government
the Commission noted that in the proposal cited articles no 507 and 508 of the selection
the decision and the principles of the freedom of Association Committee of the Governing Board
The International Labour Office to request the express permission of
"supermajority" employees, respectively. "absolute majority"
employees, while in § 17 paragraph 2. 1 and 2 of the Act on collective
negotiation of consent "is required at least half of the employees covered by the
the agreement is to relate to, "with employees, covered by the ban on strikes,
the total number of employees counted and vote on strike
do not participate in. It follows that the condition in the affected
the provisions includes less employees than by an absolute majority or
an absolute majority of the employees.
23. With regard to the list of the names of the representatives of the competent Trade Union body,
was based on the findings, according to the Government, that is established by the so-called. strike
the Committee, which is in charge of negotiations for the striking employees. Even after the
the announcement of the strike, however, is for more negotiations between the employer and
those strikers, respectively. those who are entitled to the participants of the strike
to represent. The employer must therefore be familiar with who?
He represents. The Government pointed out that the provisions of section 17 para. 4 (b). (c))
the law on collective bargaining follows the next sentence, which would be his
cancellation become devoid of purpose and nicotnou. In this regard, according to the Government
the proposal, submitted incomplete and confusing.
24. To jmennému the list of participants of the strike, the Government stated that the reason
the contested legislation was to enable the employer to comply with the obligation
According to section 22 para. 4 of the law on collective bargaining, i.e.. prepare
work for employees who are not on strike. At the same time has this list
be used to assess and satisfy claims under sections 22 to 24 of the Act.
25. Finally, the Government stated that in past years was considered
the ability to change certain provisions of the law on collective bargaining,
However, to avoid political or factual consensus between social
partners. Together with a draft of the new labour code, however, the Government
It also prepares the draft amendment to the Act on collective bargaining, in which
proposes a change in the contested provisions.
IV.
The diction of the affected provisions of the Act and its legislative history
26. The Constitutional Court notes that the contested parts of the proposal the provisions of § 17
the law on collective bargaining (highlighted in bold) were at the time of
design and now as follows:
"§ 17
(1) a strike in a dispute concerning the conclusion of the collective agreement is announced and
about the start of the competent trade authority,
If it agrees at least half of the employees covered by this
the contract apply to you.
(2) a strike in a dispute concerning the conclusion of the collective agreement a greater degree of
the higher Union body Announces. To initiate the strike shall decide
the trade authority
If it agrees at least half the employees concerned has
the collective agreement a greater degree of concern.
(3) the publication and launch of the solidarity strikes proceed similarly
pursuant to the preceding paragraphs.
(4) the competent authority shall notify the labor employers
at least three working days in advance
and when the strike began),
(b)) the reasons and objectives of the strike,
(c) a list of the names of the representatives of the competent) trade body who are
authorized to represent the participants of the strike.
The competent authority is obliged to keep the Union in writing to the employer
to report changes to the list referred to in point (c)).
(5) the competent authority shall submit to the employer the Union at least
one working day before the beginning of the strike the names of employees,
who are the participants in the strike.
(6) the persons referred to in section 20 (a). g), (h)), i), (j)), k) for the purposes of
the findings of the total number of employees does not include, nor does
the vote on the strike. On the outcome of the vote, the competent trade authority
Edit writing. "
27. the provisions of section 17 of the Act on collective bargaining has been approved in
the same terms in which the Federal Assembly of the Czechoslovak Government
She suggested. In the explanatory memorandum to the draft law, the Government stated, inter alia:
"The extreme means in a dispute concerning the conclusion of a collective agreement is ...
the strike and lockout; their publication, the progress and completion of the proposed
Edit in the interest of legal certainty to both employers and employees. ... A proposal from the
It is based on the principle that, in the event of a dispute concerning the conclusion of a collective
a collective agreement is to be addressed primarily in the proceedings before the
by the provider. However, if the proceedings before the mediator
the collective dispute is not resolved by the conclusion of collective agreements and
Contracting Parties request an arbitrator to resolve the dispute, may be as far
means of resolving this dispute declared a strike. Such a solution
the collective dispute cannot be considered a violation of the right to strike, but for
highlight the uniqueness and extreme resource enforcement request
employees. The proposed legislation is based on the tasks the workers ' strike
authorities, as advocates of the legitimate requirements of the employees. Therefore,
also in section 17 provides that a strike at the conclusion of the collective agreement
may declare and decide about its publication, the competent authority of the Union,
If it agrees at least half of the staff. The strike at the conclusion of the
higher collective agreement the competent higher authority announces the trade, about
the initiation of such a strike is decided by the competent authority where the Union with
It agrees at least half of the employees covered by the collective
agreement a greater degree of concern. ... To prevent distortion
the results of the voting on the venue of the strike, the proposal provides, in determining the
the necessary quorum, the employees referred to in section 20 of the proposal do not include. ... In
the interests of free speech, will employees in section 18 provides that the
employees may not be prevented from participating in the strike, nor must it be to the
participation in the strike compelled. " (see Web page
http://www.psp.cz/eknih/1990fs/tisky/t0260_01.htm, visited 2. 10.
2006).
In the.
The terms of the claimant's evidence and control active before the Constitutional Court
28. the proposal brought a group of a total of 42 members of the Chamber of Deputies
The Parliament of the United Kingdom, represented by one of them, a member of the
JUDr. Zdeněk Koudelka, Ph.d., the Constitutional Court notes that this group
members at the time of submission of the proposal authorized by the applicant, pursuant to section 64
paragraph. 1 (b). (b)) of the Act on the Constitutional Court, since the submission of the proposal
requires at least 41 members.
29. the representative of the applicant during the procedure. Zdeněk Koudelka,
Ph.d., the Constitutional Court said that ceased to be a member and a lawyer and
Whereas, therefore, is no longer in charge of the negotiations for a group of members of Parliament in this matter. In
during the proceedings, also ended the term of the Chamber of Deputies
Parliament of the Czech Republic, holding the members was composed the petitioner-
members of the group, with only some of them in elections to
The Chamber of deputies of the Parliament of the Czech Republic held on days 2. and
June 3, 2006 to become members again. The Constitutional Court in accordance with its
the existing case-law [cf. Constitutional Court, SP. zn. Pl. ÚS
42/95, published as the award No. 47, volume 5 Collections of findings and resolutions
The Constitutional Court (hereinafter referred to as "ECR") page 388, 390; announced
under Act No. 192/1996] notes that the terms of locus standi
mover-a group of MPs-in proceedings for review of the standards is to be
assessed at the time of initiation of the proceeding. From the requirement for the protection of constitutionality
Indeed, it is a request to the Constitutional Court because of general interest in the already
launched things acted, even though the claimant group members-
crumbled by part of them has lapsed and was part of the mandate of the Group of the
the mandate of the new.
30. For the opposition of the President of the Chamber of deputies of the Czech
Republic Ing. Miloslav Vlcek departing from the oral proceedings pursuant to §
44 para. 2 of the Act on the Constitutional Court held 5. October 2006 oral
the negotiations, which, however, for the Chamber of deputies of the Czech Parliament
Kingdom come only its Vice Chairman JUDr. Falmer,
The Senate of the Parliament of the Czech Republic without apology not appeared no one,
the representative of the appellant, of the oral proceedings. Vice Chairman
The Chamber of deputies of the Parliament of the United Kingdom referred to the written
remarks by President of the Chamber of deputies of the Parliament of the United Kingdom,
proposals for additional evidence did not, and has done no final proposal
on the decision.
Vi.
The constitutional conformity of the legislative process
31. Pursuant to § 68 para. 2 of the Act on the Constitutional Court, the Constitutional Court has in addition
assessment of compliance of the contested law with constitutional law to determine whether
was adopted and issued within the limits of the Constitution laid down the competence and constitutionally
in the prescribed manner. Based on the provisions of section 66 paragraph 1. 2 of the law on
The Constitutional Court, according to which the proposal is inadmissible if the constitutional
the law, which is under review, according to the draft regulation in violation, easily
before delivery to the Constitutional Court the validity of the proposal. Having said that,
that the laws issued prior to the entry into force of the Constitution (January 1,
1993) is entitled to the Constitutional Court to examine their content only
compliance with the existing constitutional order, but not the constitutionality of the procedure
their creation and compliance with regulatory competence (see also find SP. zn.
PL. ÚS 10/99, published as the award No. 150, sv. 16 Collections of decisions,
p. 115, 119; promulgated under no. 292/1999 Coll.).
32. Thus, in a particular case, the Constitutional Court checked whether Act No. 2/1991 Coll.,
to collective bargaining, was accepted and published within the limits of the then
the Federal Constitution laid down the competence and her in the prescribed manner.
The Constitutional Court will consider other amendments to the Act on collective
the negotiations, because they have not been challenged provisions of the Act
without prejudice to the.
33. Act No. 262/2006 Coll., amending certain laws in the context of
with the adoption of the labour code, with effect from 1. January 2007, inter alia,
§ 17 para. 1, § 17 para. 2, § 17 para. 4 (b). (c)) and repeals section 17 para. 5
the law on collective bargaining, i.e.. those provisions, which
proposes a group of Deputies. At the time the decision of the Constitutional Court, however, are
the impugned provisions of the Act is valid and effective and can be applied to the
legal relationships arising in the 31. in December 2006. Therefore, the conditions are not fulfilled,
for the termination of the proceeding under section 67 para. 1 of the law on the Constitutional Court. If
the Constitutional Court would have waited a few months until the contested provisions
cease to be valid, it could be legitimately criticized for that
alibisticky avoids the fulfilment of its mission the protection of constitutionality. In
the past, indeed, went to the meritornímu examination of the application for revocation
provisions of the Act in a situation where its derogation had several
days (see find SP. zn. PL. ÚS 42/03, promulgated under Act No. 280/2006 Coll.).
VII.
Reviews of the Constitutional Court
34. the task of the Constitutional Court in the case in question is to assess whether the legislation
concerning the conditions for the legality of the strikes in a dispute over a collective bargaining agreement
stands, in the abstract, in terms of the position of the constitutional order of the Czech
of the Republic. The first step must be to answer the question of whether and how
the strike in the constitutional law modified and what checks and balances that go with it for
the legislature.
35. the applicant pleads, in their article. 1 of the Constitution, according to the
which the Czech Republic is a sovereign, unified and democratic legal
State based on respect for the rights and freedoms of the person, and through the
article. 10 of the Constitution, which incorrectly quotes the texts of already invalid, points out
on the article. 8 of the International Covenant on economic, social and cultural
rights, the ILO Convention No. 87 on freedom of Association and protection of the right
to organise and ILO Convention No. 98 concerning the application of the principles of the right to organize
and to bargain collectively. The appellant argues with the provisions of article.
27 para. 4 of the Charter, according to which the right to strike is guaranteed under the conditions
laid down by law.
36. the Charter regulates the right to strike as part of economic rights,
social and cultural (chapter four of the Charter). The importance of this right,
or the power of his constitutional guarantees, but it is relativizována: the provisions
article. 27 para. 4 of the Charter expressly requires that the conditions for the enforcement of
to strike down the law, and in accordance with the provisions of article. paragraph 41. 1 of the Charter
There can be rights under the articles of the Charter, i.e. those listed. and the right to strike,
Sue only within the limits of laws which implement these provisions. Otherwise,
the text of the Charter, the legislature in establishing the limits and conditions for the enforcement of the
more specifically, the strike does. On the contrary, in respect of certain professions (to
persons in occupations that are immediately necessary for the protection
life and health, in addition, also against employees of the State administration and
local and regional authorities in the functions which the law determines) the legislature allows it,
that law has restricted the right to strike (article 44), or certain
professions (judges, prosecutors, members of the armed forces and
security forces) is the Charter does not give at all (article 27, paragraph 4
Of the Charter).
37. Similarly, in a general way (formulaic variance are not in the
If relevant) the right to strike is guaranteed even in the cited article. 8
paragraph. 1 (b). (d)) of the International Covenant on economic, social and
cultural rights: the State undertakes to ensure the right to strike for the
provided that it is exercised in accordance with the laws of the country concerned.
The provisions of article. 8 (2). 2 the Pact permits the imposition of legal restrictions
the exercise of this right to members of the armed forces or the police, or
the administrative authorities of the State.
38. In contrast, under the ILO Conventions No. 87 on freedom of Association and protection of the
the law of the right to organize and no. 98 concerning the application of the principles of law
to organize and to bargain collectively express guarantee of the right to
the strike does not resolve; According to the appellant the right to strike arises from the
the freedom of Association. Due to the explicit constitutional guarantee of rights
the strike in the Charter of the Constitutional Court, however, does not see any reason to
on the possibility of the existence of a theorized inferred the right to strike as a
the Basic Law of the right to freedom of association with others for the protection of
their economic and social interests, while at the same time these considerations
does not exclude.
39. If the applicant relies on the opinions of the International Labour Office,
and his control of the committees, the Constitutional Court notes that this
the international organization is not an International Court and its acts, respectively.
the opinion of the directors, are not a source of constitutional or other rights in
The Czech Republic and do not form part of its constitutional order or the legal
of the order. These opinions are addressed to the Governments of the Member countries of the international
Organization of work, its conventions and have the character of mezinárodněprávně
non-binding recommendations (so-called soft law). The reference basis for the constitutional
the Court in proceedings for review of the constitutionality of the law, be these opinions in any
If they cannot, and do not become it even if that wealth
contained in such sources as inspiration, the Constitutional Court or as a
basis of comparative reasoning used in the interpretation of the standards of the Czech
constitutional law.
40. in the light of the above, it is therefore necessary to the provision of article. 27 para. 4
and article. paragraph 41. 1 of the Charter to be interpreted so that the Charter right to strike in
General location recognises and guarantees. In principle, this right belongs to all
persons without distinction (with the exception of judges, prosecutors and members of the
the armed forces and security forces), and to the same extent. The law is
can limit only against persons in professions and activities listed
in the article. 44 of the Charter. Determination of the specific conditions of the exercise of this right,
or its limits then the Charter entrusts the lawmakers that enjoys
a fairly broad margin of discretion.
41. However, even here the legislature proceed arbitrarily, which means that the
the legislature must, with the exception of the above, respecting the principle of
equality and to establish the limits of the right to strike as well, in all cases,
that meet the specified conditions (article 4, paragraph 3, of the Charter). The legislature
However, it shall not proceed or unwisely. Due to the article. paragraph 41. 1 of the Charter
may not be a statutory right to strike in strict relation
of proportionality to the target that is being monitored, i.e. Regulation. do not go about
measures necessary in a democratic society, as is the case for example with the
other rights, which may be relied on directly from the Charter (see e.g. the law of the
freedom of Association pursuant to art. 20 (2). 1 and 3, of the Charter and article. paragraph 41. 1
Of the Charter, and on the other hand, or the right to freely associate with others on
the protection of their economic and social interests pursuant to art. 27 para. 1 and 3
Of the Charter and article. paragraph 41. 1 of the Charter, and on the other hand). A test of the constitutionality of the
to this effect, passes such a law, which can detect the monitor
a legitimate aim and that do so in a way that can be
think of it as a reasonable means to achieve it, although not necessarily
go to resource the best, the best, the most effective or the wisest.
42. Finally, the Legislature must conserve the essence and the meaning of the right to strike
(article 4, paragraph 4, of the Charter). For example, you cannot by law the right to strike
completely disable or restrict them to people in other professions, or
activities than that lists article. 44, or article. 27 para. 4 of the Charter.
Can't even lay down such conditions for the exercise of this right, which
would realistically not possible, so it guarantees the right to strike
become a mere illusory proclamations.
43. De lege lata is the right to strike by law regulated only in the area of
collective bargaining, the Act on collective bargaining, the
the contested provisions are included. The absence of legal provisions, the right to
the strike in other areas of industrial relations, the Constitutional Court due to the
the submitted proposal. Therefore, only the border of the States that
the provisions of article. 27 para. 4 of the Charter, it is possible to interpret the
the legislature is required to the right to strike by law, "perform". If you would be so
failed to do so, it would be possible to provide classified as unconstitutional
the omission of the legislature, or unconstitutional loophole (cf. find sp.
Zn. PL. ÚS 20/05 of 28 June. in February 2006, promulgated under Act No. 253/2006 Coll.).
However, this does not mean that extralegal right to strike was in
such a situation totally disputed; instability of such an interpretation follows from the
article. 4 (4). 4 of the Charter, according to which the provisions of the limits when in use
fundamental rights and freedoms necessary to conserve the essence and the meaning of the basic
rights. The courts should in this case, in the absence of legal provisions,
the protection of this right in its essence provide, otherwise it would have committed the
denial of Justice (the principle of the prohibition of denegationis iustitiae).
Conditions for the exercise of this right and its limits would have to on a case by
the case, to resolve the case-law; CF.. for example. the Supreme Court decision sp.
Zn. 21 Cdo 2489/2000 of 22 May 2000. January 1, 2002.
44. The contested provisions of the law on collective bargaining making
the legality of the realization of the right to strike in a dispute concerning the conclusion of a collective
the Treaty, a number of procedural conditions, the right to strike, no doubt
affect and restrict them. It is also clear that this has occurred in the form of the
The Charter prescribes, IE. by law. It remains, therefore, to assess whether the challenged
provisions a legitimate aim and if there are reasonable measures,
and not in an arbitrary or nešetřícím the nature and meaning of the right to strike.
45. It follows from the explanatory memorandum to the draft law on collective bargaining, as well as
and the observations of the legislature and the Government sent the draft, a group of MPs
can be inferred that the purpose of the contested provisions of the Act on collective
negotiation is the protection of the principle of legal certainty, the participants in the meeting of the
the conclusion of a collective agreement, and labour relations, participants
i.e.. employers and employees, interest in the Elimination of the so-called. Wild
to ensure the representativeness of the trade union strikes, authority for the
employee and that bargains collectively announces a strike as a last
resource in a dispute concerning the conclusion of a collective agreement, facilitate the process
negotiations and achieve the objective of collective bargaining so as to strike
as a last means of resolving a dispute between employers and employees
It was over as quickly as possible, and finally the protection of rights and free will
employees who do not want to take part in the strike.
46. the basic obligations of the employee in the employment relationship is personal
the performance of the agreed type of work according to the instructions of the employer. Unilateral
interruption of work is therefore unlawful breach of this obligation to the detriment of
the other side of the work contract. If the work is interrupted for employees
partially or completely within the strike (in order to protect their economic
and social interests-cf. article. 27 para. 1 and 4, of the Charter), character
the illegality of such acts, as employees of the unilateral
interruption of work shall exercise their right to strike. Even in these circumstances,
However, the interruption of work constitutes interference with the rights and protected interests
other people, not only employers, but also nestávkujících of employees and
other entities that are economically integrated with the employer or
in its activities or services in any way dependent. The strike
so, even if it is legal, may cause considerable economic and
the social damage. The goals that the contested regulation procedures and conditions
the announcement of the strike, in a dispute concerning the conclusion of a collective agreement, i.e. the tracks.
the prevention of economic and social damage, protect the rights and
the legitimate interests of other entities, their legal certainty resulting from the
concluded employment contracts and to balance the conflicting interests and rights of the parties
collective bargaining, so the Constitutional Court seems legitimate.
Furthermore, the applicant has not disputed the legitimacy of these objectives in any way.
47. If you strike a last resort means of in a dispute concerning the conclusion of a collective
the Treaty, which may cause significant and irreversible damage, it is understandable
If the law on the legality of a strike requires that agreed with her or her
otherwise further significant, more or less of the staff concerned has
the collective agreement apply to you. Indeed, the right to strike, as is apparent from its
inclusion in the context of the right to freedom of association with others for the protection of
their economic and social interests, it is the law of the collective; It would be
abuse of the right to strike, if his performance in his hand an individual
or close, to the number of insignificant group of people. In the present case
(the contested part of section 17, paragraph 2, of the law on collective bargaining)
the legislature requires the consent of at least half the employees concerned has
a collective agreement may apply, which strictly speaking is not even a requirement of most
as claimed by the appellant. Surely you can think of other resources,
as more or less to ensure representativeness and solemnity so fundamental
step in a dispute concerning the conclusion of a collective agreement-lower or higher quorum
established for consent (e.g. by a simple, three-fifths that
most of the employees, the consent of at least one third or two fifths
employees, etc.), or a different definition of the groups of employees, of which
the quorum checks (from all employees, from the present staff
etc.). The condition of the consent of at least half of all employees covered by the
It has a collective agreement may apply, however, is located near the center of the scale in
eligible options, and therefore it cannot be described as manifestly
an unreasonable and therefore unconstitutional.
48. A collective agreement is an agreement between two parties,
the employer on the one hand and the employees represented by the competent
the trade body on the other side. Trade authority, or its representatives,
bargains with the employer on the conclusion of a collective agreement and shall apply
legal means to achieve compliance, including rim-most resource-
the threat of a strike, or its implementation. It is to be a strike, as the extreme
resource, as quickly as possible, or stopped, turned to caused by
damages were as small as possible, it is desirable that the other party in such a polarized
the situation she knew who is authorized to act for the striking employees.
The condition of submission of the relevant trade union representatives list
the authority, who are authorized to represent the participants of the strike, as provided for in §
Article 17(1). 4 (b). (c)) of the law on collective bargaining in this situation
the Constitutional Court does not appear as manifestly unreasonable means to achieve
the legitimate aims of the legislation, as have been identified above. You can think of
certainly imagine that such a condition is not fixed at all, that the
the employer will have to rely on that on strike represent
the same representatives of the same trade union employees of the institution, which has not yet
Act on the conclusion of a collective agreement, and that you are duly authorised to all
capacity, including the interruption and termination of the strike. By establishing this condition
However, the legislature did not exceed the constitutional order as defined space for your
discretion.
49. Although the right to strike is by its very nature the law collective,
This does not mean that a strike may be forced to even those employees who
does not agree, and on strike for various reasons do not want to. These
employees have the right to keep them by the employer in accordance with the
contract awarded to work, for which they deserve the agreed
the reward, or other related claims (section 22 and section 24 of the Act on
collective bargaining), and if the employer do with regard to the
the ongoing strike cannot have the right to wage compensation when an obstacle to
the side of the employer. On the contrary, these claims are not striking; interrupt
as a result of the strike shall be treated as an absence of omluvená in
employment, for which the remuneration or compensation or related
claims (§ 22-24 of the Act on collective bargaining).
50. On the other hand, the employer has the right to protect their interests:
the right to take measures to minimize their damage caused by
the strike, or an obligation to take preventive measures to prevent or
at least minimizes the damages caused by employees or other persons. In order to
could the employer the necessary organizational, technical and safety
to adopt timely and effective measures (e.g. for continuous operations or in the
bulk transport of people) you must know in advance which of his employees on the
specific positions and workplaces its employment commitment
unilaterally suspended due to the strike and who does not. As well as to
could the employer to comply with their obligations under the labor relations
to nestávkujícím employees and their claims, must be able to
namely, to find out who is working and who on the contrary there is a strike.
51. In addition, the Constitutional Court did not find that a mere request submission
list of striking employees was eligible to hit so
extensively to other of their fundamental rights, specifically the right to
protection from unauthorized intrusion into private life, or to
the right to protection against unauthorized collection or other
abuse information about yourself in the meaning of article 87(1). 10, paragraph 1. 2 and 3, of the Charter of the
which result more stringent requirement on the appropriateness of such an intervention
in view of the objective pursued, constitutionally legitimate aim pursued (the appellant, moreover,
no such thing nor claimed). Indeed, between employer and employees
There is a closer relationship the employment contract, which among themselves freely
closed; because of the existence of this closer relationship, the employer is
shall be entitled to obtain an indication of which staff member for barrier work on the
their side, for example. for reasons of general interest, incapacity for work,
maternity and parental leave, or for other substantial personal obstacle
work, including, of course, the reason of the realization of the rights of
to strike, cannot meet its obligation to act personally work according to the
employment contract within the stipulated working hours [of section 35, paragraph 1, point (b).)
the labour code]; on the contrary, the employee is obliged the employer to
the obstacle of work on his part to realize and demonstrate it.
52. A condition of submission of the list of all the strikers in front of the
the start of the strike by the contested provisions of § 17 para. 5 of the law on
collective bargaining cannot, therefore, for the above reasons to rate
as obviously unreasonable and therefore unconstitutional means of protecting the rights of
employers and employees who are on strike is not taking part. It
of course does not mean that this is the most reasonable and the only solution possible.
The legislature, however, did not exceed the limits of its discretion when mutual rights and
obligations of employees and employers in the strike on the conclusion
collective agreements were outweighed by just submitting request namespace
the list. Whether he adequately in the new edit
According to law No. 264/2006 Coll., Constitutional Court cannot, at this stage of the proceedings
judge.
53. The Constitutional Court did not find that the legislature acted arbitrarily,
Since the contested provisions scope include unspecified
bodies and apply to all trade unions and employers,
without what was between them in terms of exercise of the right to strike in
contrary to the principle of equality and prohibition of discrimination distinction.
54. The Constitutional Court has finally dealt with and whether the contested provisions
do not restrict the right to strike in such a way that, without prejudice to itself
its essence and sense article. 4 (4). 4 of the Charter). He came to the conclusion that the
not. The contested provisions are possible and balanced compromise between the
the right to strike on the one hand, and the rights and protected interests
employers, nestávkujících employees and other bodies on the side of the
the second. The appellant did not submit any evidence showing that as a result of
the application of the contested provisions become a strike in a dispute concerning the conclusion of
the collective agreement virtually unattainable. On the contrary, is generally known
that in the 17 years of the validity of the contested provisions with a series of strikes in a dispute about
the conclusion of a collective agreement in the Czech Republic took place. Claim
the applicant to the effect that the contested provisions preventing employees in their
the proper exercise of the right to strike and that, in practice, these conditions lead to the
intimidation, discrimination and even the dismissal of workers who
therefore prefer to waive their right to strike, fearing possible
the consequences, she remained in the plane of the assumptions and hypotheses.
The unconstitutionality of the Act does not cause the hypothetical possibility of its abuse.
Against all the negative phenomena that may in connection with the performance of
the challenged provisions of the conditions required, there is effective
the Court of protection. An important element of protection, imanentně included in the
spolčovací freedom, indeed, represents itself the purpose of pooling the
the protection of their economic and social interests in the Trade Union,
that has effective legal and factual means to protect the rights and interests
employees, which brings together.
55. The Constitutional Court is aware of the fact that some employees in the
the notion that their name appears on the list of strikers, which
will be passed to the employers become less willing to participate in the strike.
However, this cannot be an argument against the request list. Cannot be
imagine that the power of any law could be anonymous. The strike
is always the confrontations, which is linked to the necessary degree of personal
commitment and responsibility for so serious a decision; even though it is
strike a collective expression, assumes the free and individual
the decision of each of its participants, otherwise would not take place.
It is undoubtedly a difficult decision, but it is always the case when
the application of any law.
56. after completion of the proceedings, the Constitutional Court notes that are not dictated by reasons
to cancel the provisions of § 17 para. 1 part of the sentence which reads "If
It agrees at least half of the employees covered by this agreement
concern. "§ 17 para. 2 part of the sentence which reads "if it agrees to
at least half of the employees covered by the collective agreement has a higher
the degree of concern. "§ 17 para. 4 (b). (c)) and § 17 para. 5 of the law on
collective bargaining, since these provisions in the abstract are not in
contrary to the article. 1 and article. 10 of the Constitution, with art. 4 (4). 4 and article. 27 para. 4
Of the Charter, article. 8 of the International Covenant on economic, social and
cultural rights, ILO Convention 87 on freedom of Association and protection of the
the law of the right to organise and ILO Convention 98 concerning the application of the principles
right to organise and to bargain collectively. Therefore, the proposal referred to in section 70
paragraph. 2 of the Act on the Constitutional Court rejected.
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, a decision of the plenary, the judges adopted a crisis management
Güttler, Elisabeth Wagner and Michael April.
